Court name
High Court Main Division
Case number
CRIMINAL 84 of 2013
Title

S v Mbambi and Another (CRIMINAL 84 of 2013) [2013] NAHCMD 367 (02 December 2013);

Media neutral citation
[2013] NAHCMD 367
Coram
Siboleka J
Cheda J










REPUBLIC
OF NAMIBIA





HIGH
COURT OF NAMIBIA MAIN DIVISION, WINDHOEK





JUDGMENT





Case
no: CR 84/2013





DATE:
02 DECEMBER 2013





REPORTABLE





In
the matter between:





THE
STATE





And





MBAMBI
TUHANDI …........................ACCUSED
1





NDORA
PETRUS................................ACCUSED
2








Neutral
citation: S v Tuhandi (CR84/2013)[2013]NAHCMD367(02 December 2013)





Coram:
SIBOLEKA J and CHEDA J





Delivered:
02 December 2013






Flynote: Criminal law: If an
accused is facing two separate counts and the same evidence is used
to sustain a conviction on both of them, there is a splitting of
charges, and only one of the counts should be preferred against him.





Summary:
The two accused were charged
and convicted on two counts: hunting a warthog at Farm Ouparakane
without a permit on the first count and theft of the same warthog at
the same farm on the second count. The matter was disposed of in
terms of section 112(1)(b) of Act 51 of 1977 and were sentenced
accordingly on each count.






Held:
It is a duplication of charges to convict and punish an accused twice
on one and the same offence he had committed at the same time and
place.





Held:
In the result both conviction and sentence on the second count
are set aside.





ORDER








The
conviction and sentence on the second count are set aside.





REVIEW
JUDGMENT








SIBOLEKA
J (CHEDA J concurring):





[1]
The two accused appeared before the Magistrate’s Court at
Okahandja on the following charges: Count 1: Nature Conservation
Ordinance – Hunting huntable game in contravention of section
30 (1)(a), read with section 1, 30(1)(b) + (c), 85 89, and 89 A of
Ordinance 4 of 1975 as amended, and further read with sections 90 and
250 of Act 51 of 1977.





In
that upon or about the 6th day of November 2010 at or near Farm
Ouparakane in the district of Okahandja the said accused did
wrongfully and unlawfully hunt huntable game, to wit: 1 x warthog
valued at N$600 without a permit or written authority to do so.





Count
2: Theft:





That
the accused is/are guilty of the crime of Theft. In that upon or
about the 6th day of November 2010 and at or near Farm Ouparakane in
the district of Okahandja the said accused did wrongfully, unlawfully
and intentionally steal 1 x warthog valued at N$600 the property or
in the lawful possession of Martin Harms.





[2]
Both accused pleaded guilty and after questioning in terms of section
112 (1)(b) of Act 51 of 1977, were convicted and sentenced
accordingly.





[3]
In S v Benjamin en Ander 1980 (1) SA 950 (A): Two appellant brothers
were charged firstly with attempted murder in that they had attempted
to kill S by shooting him with a firearm and secondly, robbery with
aggravated circumstances in that they had used violence on S and had
threatened him and had led him to believe that force would be used in
that they had shot him with a firearm and had threatened him with
such firearm with intent to steal the money in his possession. They
were convicted and separate sentences on each count were imposed. On
appeal an analysis of the evidence revealed that both charges had
included a conviction of an act of assault, the shooting of S with a
firearm. It was held that the charges of attempted murder and robbery
resulted in the appellants being convicted twice on the same act of
assault, that is, shooting of S with a firearm.





[4]
In the two counts both accused admitted that on 6 November 2010 they
stabbed and killed a warthog with spears at Farm Ouparakane. It is
therefore my considered view that on this matter both counts included
a conviction of killing the same warthog with spears on the same day
at the same farm. Consequently there is a splitting of charges.





[5]
In view of the above, the conviction and sentence on the second count
of theft cannot be allowed to stand.





[6]
In the result I make the following order:





The
conviction and sentence on the first count are confirmed.





The
conviction and sentence on the second count are set aside.





It
is ordered that any payment, if any, the accused may have made on the
second count be refunded back to him immediately.











A
M SIBOLEKA


Judge








M
CHEDA


Judge